THE PEOPLE OF THE STATE OF NEW YORK v. ZAREIF RAHIM (2010)

MEMORANDUM AND ORDER

Calendar Date:  September 16, 2010

Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered July 27, 2009, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree (two counts).

Waiving his right to appeal, defendant pleaded guilty to possessing a loaded .40 caliber semi-automatic pistol with the understanding that his sentence would not exceed 31/212 years in prison and County Court would consider granting youthful offender status.   Ultimately, County Court declined to adjudicate defendant a youthful offender and imposed a prison term of 31/212 years with three years of postrelease supervision.   Defendant appeals and we affirm.

Defendant contends that County Court's determination to deny youthful offender status was improperly based upon the disputed allegations by the prosecutor at sentencing that, when the pistol was seized by the police, there was a shell in its chamber and the weapon's safety was off.   Defendant argues that County Court should have held a hearing to resolve the dispute prior to determining his youthful offender status.   This issue is unpreserved, however, due to defendant's failure to request a hearing at the time of sentencing (see CPL 470.05[2];  People v. Delayo, 52 AD3d 1114, 1115 [2008], lv denied 11 N.Y.2d 787 [2008] ).   In any event, review is precluded by defendant's valid bargained-for waiver of appeal because his claim is a challenge to the procedures utilized in determining the sentence and does not implicate the legality of the sentence or the power of the court to impose it (see People v. Callahan, 80 N.Y.2d 273, 281 [1992];  People v. Platero, 63 AD3d 1446 [2009], lv denied 13 NY3d 861 [2009];  People v. Dillon, 61 AD3d 1221, 1221-1222 [2009], lv denied 14 NY3d 840 [2010];  People v. Hooten, 34 AD3d 941, 941 [2006];  People v. Griffin, 17 AD3d 927, 927 [2005];  People v. Hicks, 201 A.D.2d 831, 832 [1994], lv denied 83 N.Y.2d 911 [1994] ).

Finally, defendant's request that we exercise our interest of justice jurisdiction to grant youthful offender status is barred by his valid appeal waiver (see People v. Cullen, 62 AD3d 1155, 1157 [2009], lv denied 13 NY3d 795 [2009];  People v. Rosseter, 62 AD3d 1093, 1095 [2009];  People v. Baker, 6 AD3d 751, 751 [2004] ).

Spain, J.P., Kavanagh, McCarthy and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Michael J. Novack

Clerk of the Court